Sat Jan 27

UN’s top court puts Israel on notice over its war in Gaza. Here’s what its judgement could mean

Written by: Donald Rothwell, Professor of International Law, Australian National University

The International Court of Justice ^[1] (ICJ) in The Hague has issued an unprecedented set of preliminary orders in the case brought against Israel by South Africa alleging it is committing genocide in its war against Hamas in Gaza.

By a 15–to–two majority ^[2], the orders ^[3] place constraints on Israel’s military operations in Gaza and require Israel to report back by February 26 on steps it is taking to fulfil these orders.

However, the ICJ did not accept South Africa’s request that Israel immediately suspend its military operations in Gaza. Rather, the court modified the South African request, which if upheld would have denied Israel’s inherent right of self-defence.

Israel can therefore continue to defend itself against ongoing Hamas attacks in Gaza. However, Israel must now conduct its military operations consistently with the ICJ’s orders.

The orders are final and binding and not subject to appeal. But the ICJ lacks enforcement capacity, which ultimately rests with the UN Security Council.

The ICJ orders make clear there is no conclusive finding at this stage as to whether acts of genocide have occurred. That will be determined at the “merits” phase of the case, which may take up to four to five years to be completed.

While Hamas and its conduct was not before the court, direct reference was made to the group’s assault on southern Israel on October 7 and the fate of the remaining hostages taken that day. The ICJ observed ^[4] that it “is gravely concerned about the fate of the hostages […] and calls for their immediate and unconditional release”.

President Joan Donoghue (second from right) and other judges during the ruling by the International Court of Justice. Remko de Waal/EPA

Background to the case

South Africa brought the case to the court on December 29, alleging Israel’s military operations in Gaza in response to the October 7 Hamas attacks amounted to acts of genocide ^[5].

Although South Africa is not involved in the Israel-Hamas conflict, it claimed it had standing to bring the case as a party to the Genocide Convention ^[6].

The case has proceeded swiftly. Preliminary hearings were held in early January and South Africa expedited the case by seeking “provisional measures” against Israel. These are a form of interim orders the ICJ can urgently issue where there is a risk of irreparable harm occurring.

South Africa did not need to conclusively prove Israel was engaging in genocide. All South Africa needed to demonstrate was that there was a plausible case Israel was acting with genocidal intent in Gaza and engaging in genocidal conduct.

As to evidence of of this genocidal intent, the ICJ made express reference ^[8] to public statements between October 9 and 13 of Israeli public officials such as Defence Minister Yoav Gallant, President Isaac Herzog and Energy and Infrastructure Minister Israel Ketz. For example, the judgement quotes Gallant as saying to Israeli troops on the Gaza border in early October:

You saw what we are fighting against. We are fighting human animals. This is the ISIS of Gaza. This is what we are fighting against […] Gaza won’t return to what it was before. There will be no Hamas. We will eliminate everything. If it doesn’t take one day, it will take a week, it will take weeks or even months, we will reach all places.

With respect to genocidal conduct, the court noted the deaths of 25,700 Palestinians and more than 63,000 injuries since the war began, while also observing these figures could not be independently verified.

The court also stated ^[9] that the “civilian population in the Gaza Strip remains extremely vulnerable” and the “catastrophic humanitarian situation in the Gaza Strip is at serious risk of deteriorating further before the Court renders its final judgment”.

Palestinian supporters in front of the Peace Palace in the Hague ahead of the ruling by the International Court of Justice. Remko de Waal/EPA

What the court’s orders will mean

The court ordered Israel (including its military) to immediately comply with six provisional measures ^[10], ensuring it takes all measures to prevent acts of genocide against Palestinians in Gaza.

This extends to killing Palestinians, causing serious bodily or mental harm to civilians and imposing measures to prevent births. Israel is also to take immediate measures to allow for the provision of humanitarian assistance to address the adverse conditions faced by Palestinians in Gaza.

Of the 17 judges ^[11] sitting on this case, an overwhelming majority (15 of them) voted to endorse these orders. Its president, Judge Donoghue, is from the United States. Other judges are from Australia, Brazil, China, India, Japan and Russia. Special ad hoc judges from Israel and South Africa were also appointed to the court for this case.

While the ICJ’s interim judgement demonstrated the strength of the South African case at this preliminary stage, it will not resolve the Israel-Hamas conflict. For example, the court’s orders do not interfere with Israel’s right of self-defence.

Nevertheless, the judgement will impact how Israel conducts its military operations. Much greater emphasis will now need to be given to the principle of distinction between targeting combatants and civilians, and additional measures of precaution will need to be taken to avoid civilian casualties. Humanitarian aid will also need to flow to Gaza.

In addition, Israel’s supporters and allies such as Australia, Canada, the United Kingdom and the United States will now be expected to respond to the court’s ruling. How they recalibrate their public statements supporting Israel – and their diplomatic and private exchanges with Israeli political leaders – may prove pivotal to Israel scaling back aspects of its military operations.

Israel has been placed on notice by the ICJ. A plausible case has been made out that Israel has engaged in genocidal conduct in Gaza. It will take many years before a final judgement is reached, but this judgement will influence how the international community and court of public opinion ultimately view Israel’s conduct in Gaza and its pursuit for justice following the October 7 Hamas attacks.